Police
— Investigations — Special Investigations Unit — Right to counsel — Duty to make
notes — Whether police officers have right to consult with counsel before
making notes on incident — Whether police officers are entitled to basic legal
advice as to nature of rights and obligations in connection with incident — Police
Services Act, R.S.O. 1990, c. P‑15, s. 113 — Conduct and Duties
of Police Officers Respecting Investigations by the Special Investigations Unit,
O. Reg. 267/10, ss. 7, 9.

This
case arises from two independent fatal incidents in which civilians were shot
by the police. In both cases, the involved officers were instructed by
superior officers to refrain from making their police notes on the incident
until they had spoken with counsel. The families of the two civilians who were
killed brought an application seeking an interpretation of various provisions
of the Police Services Act, R.S.O. 1990, c. P‑15, and Conduct
and Duties of Police Officers Respecting Investigations by the Special
Investigations Unit, O. Reg. 267/10. For purposes of this appeal, the
pertinent issue raised by the families was whether the legislative scheme
permitted officers to consult with counsel before completing their notes.

The
families’ application was dismissed by the Superior Court on procedural
grounds. The Court of Appeal dealt with the matter on its merits, and held
that the regulation did not permit police officers to seek the assistance of
counsel in completing their notes. However, it found that, under the
regulation, officers were entitled to receive basic legal advice as to the
nature of their rights and obligations regarding the incident and the Special
Investigations Unit (“SIU”) investigation before completing their notes. The
officers argue that those limits are too restrictive. The Director of the
Special Investigations Unit cross‑appeals, arguing that police officers
are not entitled to legal advice, basic or otherwise, prior to completing their
notes.

Held
(LeBel, Fish and Cromwell JJ. dissenting in the cross‑appeal): The
appeal should be dismissed and the cross‑appeal should be allowed.

Per McLachlin C.J. and Abella, Rothstein, Moldaver, Karakatsanis
and Wagner JJ.: Police officers are entrusted by the communities they
serve with significant legal authority, including, in some circumstances, the
power to use deadly force against their fellow citizens. The indispensible
foundation for such authority is the community’s steadfast trust in the police.
But that trust can be tested when a member of the community is killed or
seriously injured at the hands of a police officer. The SIU is charged with
the delicate task of determining independently and transparently what happened
and why, in the hope of providing the community with answers. Permitting
police officers to consult with counsel before their notes are prepared is an
anathema to the very transparency that the legislative scheme aims to promote.
When the community’s trust in the police is at stake, it is imperative that the
investigatory process be — and appear to be — transparent.

Under
the Act and regulation, a police officer who witnessed or participated in an
incident under investigation by the SIU is not permitted to speak with a lawyer
before preparing his or her notes concerning the incident. While officers, in
their capacity as ordinary citizens, may be free at common law to consult with
counsel as and when they see fit, weare considering them here in their
professional capacity as police officers who are involved in an SIU
investigation. In these circumstances, the point of departure is not the
common law, but the regulation which governs these situations and which
comprehensively sets out their rights and duties, including their entitlement
to counsel. So long as police officers choose to wear the badge, they must
comply with their duties and responsibilities under the regulation, even if
this means at times having to forego liberties they would otherwise enjoy as
ordinary citizens.

Read
in the full light of its history and context, it is apparent, for three
reasons, that the regulation was not meant to permit officers to consult with
counsel before they complete their notes.

First,
consultation with counsel at the note‑making stage is antithetical to the
dominant purpose of the legislative scheme because it risks eroding the public
confidence that the SIU process was meant to foster. The legislative scheme
specifically combats the problem of appearances that flowed from “police
investigating police” by placing investigations of the police in the hands of
civilians. Allowing officers to fully consult with counsel at the note‑making
stage creates an “appearances problem” similar to the one that the SIU was
created to overcome: a reasonable member of the public would naturally question
whether counsel’s assistance at the note‑making stage is sought by
officers to help them fulfill their duties as police officers, or if it is
instead sought, in their self‑interest, to protect themselves and their
colleagues from the potential liability of an adverse SIU investigation.

Second,
the legislative history demonstrates that s. 7(1) was never intended to
create a freestanding entitlement to consult with counsel that extended to the
note‑making stage. There was no discussion of a role for counsel at the
note‑making stage in any of the reports related to the regulation, let
alone a recommendation to that effect. While the government has long been
aware of the practice of officers consulting with counsel prior to preparing
their notes, the government is not required to amend regulations to forbid
practices that are already inconsistent with the legislative scheme.

Third,
consulting with counsel at the note‑making stage impinges on the ability
of police officers to prepare accurate, detailed and comprehensive notes in
accordance with their duty under s. 9 of the regulation. Sections 9(1)
and 9(3) of the regulationrequire witness and subject officers to
“complete in full the notes on the incident in accordance with [their] duty”. While
neither the regulation nor the Act define the duty to make notes, police
officers do have a duty to prepare accurate, detailed, and comprehensive notes
as soon as practicable after an investigation. Permitting officers to consult
with counsel before preparing their notes runs the risk that the focus of the
notes will shift away from the officer’s public duty toward his or her private
interest in justifying what has taken place. This shift would not be in accord
with the officer’s duty.

Without
in any way impugning the integrity of counsel or police officers, even the
perfunctory consultation contemplated by the Court of Appeal is liable to cause
the same threat to public confidence, if on a somewhat diminished scale,
because the initial consultation is privileged. A loss of public trust would
seem a high price to pay for an initial consultation that is limited to
providing officers with basic information that can easily be conveyed in ways
that do not generate any appearance problem. Nothing in the regulation
prevents officers who have been involved in traumatic incidents from speaking
to doctors, mental health professionals, or uninvolved senior police officers
before they write their notes, and the regulation empowers the chief of police
to allow officers more time to complete their notes when required. Once
officers have completed their notes and filed them with the chief of police,
they are free to consult with counsel.

Per LeBel, Fish and Cromwell JJ. (dissenting in the cross‑appeal):
Everyone is at liberty to consult counsel whenever they wish unless doing so
is precluded by lawful authority or inconsistent with their duty. This freedom
reflects the importance of the societal role of lawyers in a country governed
by the rule of law and it should not be eliminated in the absence of clear
legislative intent.

Interpreting
s. 7(1) of the regulationpurposively requires that we give effect
to police officers’ freedom to consult counsel and consider the importance of
the SIU’s mandate to enhance public confidence in the police. The plain
wording of s. 7(1) grants the right to consult with legal counsel and the
right to have legal counsel present during an SIU interview. Since this
wording does not oust the rights that police officers would otherwise enjoy as
ordinary citizens, and since the potential tension between the right to consult
and the duty of the officer to write complete and independent notes can be
resolved, there is no need to completely eliminate a police officer’s liberty
to consult counsel.

We
must trust that lawyers will know that they cannot give advice about the contents
and drafting of the notes, which must remain the result of a police officer’s
independent account of the events. However, the officer could be advised that
he or she is required to complete notes of the incident prior to the end of his
or her tour of duty and submit them to the chief of police unless excused by
the chief of police; that the chief of police will not pass the notes of a
subject officer on to the SIU, but will pass the notes of a witness officer on
to the SIU; that the officer will be required to answer questions from the SIU
investigators; that the officer will be entitled to consult counsel prior to
the SIU interview and to have counsel present during the interview; and that
the notes should provide a full and honest record of the officer’s recollection
of the incident in the officer’s own words. This brief, informative
conversation might not be as meaningful as comprehensive legal advice on the
relationship between an officer’s notes and potential liability, but it might
help to remind an officer of his or her duties in the circumstances and put the
officer at ease after having experienced a potentially traumatic incident.

Adams, George W. Consultation Report of the Honourable
George W. Adams, Q.C. to the Attorney General and Solicitor General Concerning Police
Cooperation with the Special Investigations Unit. Toronto: Ministry of
the Attorney General, 1998.

Adams, George W. Review Report on the Special
Investigations Unit Reforms prepared for the Attorney General of Ontario by The
Honourable George W. Adams, Q.C. Toronto: Ministry of the Attorney
General, 2003.

Marian K.
Brown, for the intervener Richard Rosenthal, Chief
Civilian Director of the Independent Investigations Office of British Columbia.

Maureen L.
Whelton and Neil Wilson, for the intervener the
Urban Alliance on Race Relations.

David B.
Butt, for the interveners the Canadian Police
Association and the Police Association of Ontario.

The judgment of McLachlin
C.J. and Abella, Rothstein, Moldaver, Karakatsanis and Wagner JJ. was delivered
by

Moldaver J. —

I. Introduction

[1]Police officers are entrusted by the communities
they serve with significant legal authority, including, in some circumstances,
the power to use deadly force against their fellow citizens. The indispensible
foundation for such authority is the community’s steadfast trust in the
police. Each and every day, thousands of officers across this country work
diligently to earn that trust, often putting their own lives on the line.

[2]But that trust can be tested — sometimes
severely — when a member of the community is killed or seriously injured at the
hands of a police officer. For that reason, the citizens of Ontario have
charged an all-civilian Special Investigations Unit (“SIU”) with the delicate
task of investigating such tragic incidents. The SIU’s mission is clear: it
is to determine independently and transparently what happened and why, in the
hope of providing the community with answers.

[3]No one is above the law. When a member of the
community is killed or seriously injured by a police officer, it is not only
appropriate to ask whether the police were acting lawfully, it is essential.
To that end, the SIU plays a vital role in ensuring that our society remains
fair and just and that everyone is treated equally before and under the law.

[4]This appeal concerns one aspect of the way in
which the SIU conducts its investigations. The question presented is whether,
under the scheme that Ontario has crafted, a police officer who witnessed or
participated in an incident under investigation by the SIU is entitled to speak
with a lawyer before preparing his or her notes concerning the incident.
In my view, the answer is “no”.

[5]The legislative scheme at issue here reflects
the promise of a series of public inquiries and task forces urging reform of
the old approach of “police investigating police”. Time and time again,
reports of these groups have underscored the importance of creating an
independent body charged with transparently investigating whether what happened
reflected a breach of the public’s trust or not.

[6]Permitting police officers to consult with
counsel before their notes are prepared is an anathema to the very transparency
that the legislative scheme aims to promote. Put simply, appearances matter.
And, when the community’s trust in the police is at stake, it is imperative
that the investigatory process be — and appear to be — transparent.

[7]Manifestly, the legislature did not intend to
provide officers with an entitlement to counsel that would undermine this
transparency. The SIU’s governing regulation hews closely to the specific
recommendations of those tasked with proposing reforms — down to many of its
specific provisions. Read in the full light of its history and context, it is
apparent that the regulation was not meant to afford officers an entitlement to
consult with counsel before they complete their notes.

[8]Nor is such an entitlement consistent with an
officer’s duties under the legislative scheme. Such an expansive understanding
of the entitlement to counsel impinges on the ability of police officers to
prepare accurate, detailed, and comprehensive notes in accordance with their
duty. Permitting consultation with counsel before notes are prepared runs the
risk that the focus of the notes will shift away from the officer’s public duty
toward his or her private interest in justifying what has taken place. This
shift would not be in accord with the officer’s duty.

[9]In the result, I would dismiss the appeal and
allow the cross-appeal.

II. Facts

[10]This case arises from two independent fatal
incidents in which Douglas Minty and Levi Schaeffer were shot by the police.
The facts surrounding the incidents are not in dispute.

A. The Minty Investigation

[11]On June 22, 2009, Mr. Minty was shot to death by
Cst. Seguin of the Ontario Provincial Police (“OPP”). That evening, Cst.
Seguin had been dispatched to investigate an alleged assault committed by Mr.
Minty on a door-to-door salesman. When Cst. Seguin arrived at the scene, he
approached Mr. Minty. Mr. Minty walked quickly toward Cst. Seguin. He had a
knife in his hand. Cst. Seguin instructed Mr. Minty to put down or drop his
weapon. Mr. Minty ignored these commands and “charged at Cst Seguin with his
arm extended and the knife pointing at the officer” (SIU Report, A.R., vol.
III, at p. 661). Cst. Seguin shot Mr. Minty five times.

[12]Cst. Seguin reported that shots had been fired
and additional officers arrived at the scene. Sgt. Burton, Cst. Seguin’s
senior officer, told all of the officers in the area that the SIU might
consider them to be witnesses to the incident and instructed them not to make
any further notes until they had spoken with counsel.

[13]On October 14, 2009, Mr. Scott, the Director of
the SIU (the “SIU Director”), provided his report on the incident to the
Attorney General. In his report, the SIU Director found that Cst. Seguin “had
a reasonable apprehension of imminent death or grievous bodily harm” from which
he could not escape and concluded that “the lethal force used was not
excessive” in the circumstances (SIU Report, A.R., vol. III, at p. 661).

[14]Significant for present purposes, the SIU
Director noted in his report that he would be raising several issues of concern
with the OPP Commissioner. Among them, the SIU Director included his concern
that all witness officers had been instructed not to write up their notes until
they had spoken to counsel.

B. The Schaeffer Investigation

[15]On June 24, 2009, Mr. Schaeffer was shot and
killed by Cst. Wood of the OPP. Cst. Wood and Acting Sgt. Pullbrook had
traveled by boat to a rocky peninsula on Osnaburgh Lake to investigate a
reported theft. When they arrived at the peninsula, the officers approached
Mr. Schaeffer, questioned him, and attempted to detain him. According to the
officers, Mr. Schaeffer physically resisted and pulled a knife out of his
pocket. Both officers retreated as Mr. Schaeffer advanced towards them. Mr.
Schaeffer did not comply with commands to drop the knife. At that point, Cst.
Wood shot Mr. Schaeffer twice in the chest, killing him.

[17]On September 25, 2009, the SIU Director provided
his report on this incident to the Attorney General. He concluded that he
could not form reasonable and probable grounds to believe that Cst. Wood had
committed a criminal offence because he could not “place sufficient reliance on
the information provided by Cst Wood or A/Sgt Pullbrook to decide what probably
happened” (A.R., vol. III, at p. 516). The SIU Director expressed specific
concern over the manner in which Cst. Wood and Acting Sgt. Pullbrook completed
their notes. The SIU Director wrote:

This note writing process
flies in the face of the two main indicators of reliability of notes:
independence and contemporaneity. The notes do not represent an independent
recitation of the material events. The first
drafts have been “approved” by an OPPA lawyer who represented all of the
involved officers in this matter, a lawyer who has a professional obligation to
share information among his clients when jointly retained by them. Nor are the
notes the most contemporaneous ones — they were not written as soon as
practicable and the first drafts remain in the custody of their lawyer. I
am denied the opportunity to compare the first draft with the final entries.
Accordingly, the only version of the material events are association lawyer
approved notes. Due to their lack of independence and contemporaneity, I
cannot rely upon these notes nor A/Sgt Pullbrook’s interview based upon them for
the truth of their contents.

I have a statutory
responsibility to conduct independent investigations and decide whether a
police officer probably committed a criminal offence. In this most serious
case, I have no informational base I can rely upon. Because I cannot conclude
what probably happened, I cannot form reasonable grounds that the subject
officer in this matter committed a criminal offence. [Emphasis added;
A.R., vol. III, at p. 517.]

III. Relevant Legislative Provisions

A. The Police Services Act

[18]The SIU was established by s. 113 of the Police
Services Act, R.S.O. 1990, c. P.15. Section 113(5) of the Actempowers
the SIU to “cause investigations to be conducted into the circumstances of
serious injuries and deaths that may have resulted from criminal offences
committed by police officers”. The SIU Director cannot be a police officer or
a former police officer, and SIU investigators cannot be current police
officers (s. 113(3)). The SIU Director determines whether charges will be laid
against police officers (s. 113(7)). Police officers are required by the Actto “co-operate fully” with the SIU in the conduct of investigations (s.
113(9)).

B. The Regulation

[19]The regulation governs the conduct of SIU
investigations(Conduct and Duties of Police Officers Respecting
Investigations by the Special Investigations Unit, O. Reg. 267/10).
Officers involved in an incident triggering an SIU investigation fall into two
categories: officers whose conduct appears to have caused the death or serious
injury are designated “subject officers”, and involved officers who are not
subject officers are deemed to be “witness officers” (s. 1(1)).

[20]The regulationprovides that all involved
officers must be segregated from each other, to the extent practicable, until
after the SIU has completed its interviews (s. 6(1)). The regulation also
provides all officers with an entitlement to “consult” with legal counsel and
to have counsel “present” during their SIU interviews (s. 7(1)), unless the SIU
Director is of the opinion that waiting for counsel would cause an unreasonable
delay in the investigation (s. 7(2)). Witness officers are required to meet
with the SIU and answer all of its questions (s. 8(1)). Both subject and
witness officers are required to complete their notes on the incident “in
accordance with [their] duty” (s. 9(1) and (3)). However, only witness
officers are required to provide their notes to the SIU (s. 9(1) and (3)). If
a witness officer is later designated a subject officer by the SIU, the SIU is
required to provide the officer with the original and all copies of his
interview with the SIU and his officer notes (s. 10(3)(b) and (c)).

[21]The proper interpretation of the regulationlies
at the heart of this appeal. The entitlement to counsel under s. 7(1) and the
duty to make notes under s. 9(1) and (3) are of particular importance. These
provisions read as follows:

7. [Right to counsel] (1) Subject to
subsection (2), every police officer is entitled to consult with legal counsel
or a representative of a police association and to have legal counsel or a
representative of a police association present during his or her interview with
the SIU.

. . .

9. [Notes on
incident] (1) A witness officer shall complete in full the notes on the
incident in accordance with his or her duty and . . . shall provide the notes
to the chief of police within 24 hours after a request for the notes is made by
the SIU.

. . .

(3)
A subject officer shall complete in full the notes on the incident in
accordance with his or her duty, but no member of the police force shall
provide copies of the notes at the request of the SIU.

IV. Proceedings Below

A. Superior Court of Justice for Ontario,2010 ONSC
3647(CanLII)

[22]Mr. Schaeffer’s mother, Ruth Schaeffer, and Mr.
Minty’s mother and sister, Evelyn Minty and Diane Pinder (the “Families”)
brought an application under Rule 14.05(3) of the Rules of Civil Procedure,R.R.O. 1990, Reg. 194, seeking “[d]eclaratory relief in the form of
judicial interpretations and guidance in respect of those provisions of the Police
Services Act and Regulations that govern the police duty to cooperate with
investigations by the Special Investigations Unit” (A.R., vol. I, at p.
91). One of the issues raised by the Families was whether the legislative
scheme permitted officers to consult with counsel before completing their
notes. The Families named Cst. Seguin, Cst. Wood, Acting Sgt. Pullbrook (the
“Officers”), OPP Commissioner Julian Fantino, the SIU Director, and the
Ministry of Community Safety and Correctional Services as respondents.

[23]Prior to the hearing of the application on its
merits, the Officers brought a motion to strike the application on the grounds
that the application was not justiciable and that the Families lacked standing
to bring it. Low J. allowed the Officers’ motion and struck the application.
Before this Court, the Officers have abandoned these procedural arguments. It
is therefore unnecessary to consider them further.

B. Court of Appeal for Ontario, 2011 ONCA 716, 107 O.R. (3d)
721

[24]The Families appealed to the Ontario Court of
Appeal seeking to have the application decided on its merits. Sharpe J.A.,
writing for a unanimous court, held that the application was justiciable, that
the Families had public interest standing, and that the Court of Appeal had
jurisdiction to decide the substantive issues raised in the application without
the need to remit the matter to the Superior Court.

[25]The Court of Appeal found that the assistance of
counsel in the preparation of an officer’s notes “would be inconsistent with
the purpose of police notes and with the duty imposed on police officers to
prepare them” primarily because any legal advice received by the officer would
be “geared to the officer’s own self interest, or the interests of fellow officers,
rather than the officer’s overriding public duty” (paras. 71-72). As a result,
the court concluded that s. 7(1) did not permit police officers to seek the
assistance of counsel in completing their notes.

[26]However, in the Court of Appeal’s view, s. 7(1)
of the regulation did entitle officers to “basic legal advice as to the nature
of [their] rights and obligations in connection with the incident and the SIU
investigation” (paras. 79 and 81).

V. Issue

[27]The Officers have appealed to this Court,
asserting that the Court of Appeal erred in restricting the entitlement to
counsel in s. 7(1) to nothing more than “basic legal advice”. The SIU Director
has cross-appealed and takes the opposite view, arguing that, although the
Court of Appeal was correct in holding that officers are not entitled to the
assistance of counsel in the preparation of their notes, it erred in concluding
that police officers are entitled to “basic legal advice” prior to completing
their notes. The Families and the OPP Commissioner are content with the
decision of the Court of Appeal and defend its correctness.

[28]The primary issue on appeal is whether s. 7(1)
of the regulationentitles officers involved in incidents triggering SIU
investigations to speak with counsel before completing their notes. Given my
conclusion that the answer to this issue is no, I need not go on to consider
the nature or extent of any such entitlement.

VI. Analysis

A. The Source of the Disputed Right to Counsel

[29]At the outset, it is important to be clear about
the focus of our inquiry. This case concerns the scope of an entitlement to
counsel that flows from a regulatory provision. We are not here concerned with
the right to counsel that exists under s. 10(b) of the Canadian
Charter of Rights and Freedoms. No party has sought to determine whether
witness or subject officers are “detained” within the meaning of s. 10(b)
during SIU investigations. Two of the interveners before this Court argued
that the regulation triggers an officer’s right to counsel under s. 10(b)
of the Charter: see factums of the Canadian Civil Liberties Association
and the Canadian Police Association. The SIU Director brought a motion to
strike out the paragraphs of the interveners’ factums that raised this issue on
the grounds that it had not been raised by any of the parties to this appeal,
and the interveners were precluded from raising new issues on their own
accord. I agree with the SIU Director that the s. 10(b) issues are not
properly before this Court, and would therefore allow the motion.

[30]Nor has any party questioned whether the right
to silence or the common law confessions rule prevents an officer’s notes from
being used against that officer in a subsequent criminal prosecution.
Accordingly, I refrain from expressing any opinion on those issues. Finally,
this case does not concern the liberty citizens generally enjoy at common law
to consult with counsel as and when they see fit. The Officers argue that, no
matter how s. 7(1) is interpreted, they are free at common law to consult with counsel
in the preparation of their notes.

[31]With respect, I cannot agree. We are not here
dealing with police officers in their capacity as ordinary citizens. We are
dealing with them in their professional capacity as police officers who are the
subject of an SIU investigation because they have been involved in an incident
that has resulted in serious injury or death. In these circumstances, the
point of departure is not the common law liberty to consult with counsel.
Rather, we must begin with the regulation which governs these situations and
which comprehensively sets out their rights and duties, including their
entitlement to counsel.

[32]This starting point requires that an officer’s
entitlement to counsel at the note-making stage be determined purposively,
through the lens of the legislative scheme, thus ensuring the entitlement will
be in harmony with the scheme and its overarching purpose. The first question,
therefore, is whether s. 7(1) of the regulation, interpreted purposively,
entitles officers to consult with counsel at the note-making stage. If such an
entitlement is inconsistent with the regulation,then officers involved
in SIU investigations are precluded from such consultations and we need not
reach the question of what residual liberty officers may retain at common law.
In short, so long as police officers choose to wear the badge, they must comply
with their duties and responsibilities under the regulation, even if this means
at times having to forego liberties they would otherwise enjoy as ordinary
citizens.

B. The Proper Approach to
Statutory Interpretation

[33]Answering the question posed by this appeal
requires interpreting s. 7(1) of the regulation. The words of the provision
must be read in their entire context, in their grammatical and ordinary sense
harmoniously with the scheme of the regulation, its objective, and the
intention of the legislature. Critically, the provisions of the regulationmust
be read in light of the purpose of the enabling legislation — the Act. That
purpose “transcends and governs” the regulation (Bristol-Myers Squibb Co. v.
Canada (Attorney General), 2005 SCC 26, [2005] 1 S.C.R. 533, at para. 38).
An interpretation of s. 7(1) that leads to conflict with another provision of
the regulation, or that runs contrary to the purpose of the legislative scheme,
must be avoided.

C. The Origin and Purpose of the Special Investigations Unit

[34]Before turning to the interpretation of s. 7(1)
of the regulation, it is necessary to describe the origin and purpose of the
legislative scheme. Doing so provides the context for the analysis that
follows.

(1) The Creation of the Special Investigations Unit

[35]Before the SIU was formed, incidents of serious
injuries or deaths involving police officers were investigated internally by
the police (A. Marin, Oversight Unseen: Investigation into the Special
Investigations Unit’s operational effectiveness and credibility (2008), at
para. 23). This changed in 1990 with the enactment of the Act, which created
the SIU.

[36]The creation of the SIU followed on the heels of
a report released in 1989 by the Task Force on Race Relations and Policing (Report
of the Race Relations and Policing Task Force (1989)). The Task Force was
commissioned by the provincial government after two black Ontarians were fatally
shot by the police in 1988. Its report contained a host of recommendations,
one of which called for the creation of an “investigative team” comprised
partially of civilians “to investigate police shootings” in the province (p.
150). The Task Force recommended civilian participation in investigations of
the police because, in its view, the practice of “police investigating the
police” could not “satisfy the public demand for impartiality” and fostered “a
serious deterioration in the public confidence” (p. 147).

[37]The Solicitor General, during legislative debate
on the Act,confirmed that the creation of the SIU was a direct response
to the recommendation of the Task Force. He stated that the government had
listened to the concerns raised by the Task Force and that the Act “addresses
the concern, heard by the general public, of police investigating police”
(Legislative Assembly of Ontario, Official Report of Debates (Hansard),
2nd Sess., 34th Parl., May 17, 1990, at p. 1318).

(2) The Creation of the Regulation

[38]The SIU operated without a regulation governing
the conduct of its investigations until 1998 when O. Reg. 673/98, the
predecessor to the regulation at issue in this appeal, was adopted following
another government report. In 1997, the Honourable G. W. Adams was appointed
by the government to consult with community and police organizations and to
make consensus-based recommendations for improving the relationship between the
SIU and the police.

[39]Mr. Adams released his report in 1998 (Consultation
Report Concerning Police Cooperation with the Special Investigations Unit
(1998) (“Adams 1998”)). In his report, Mr. Adams recognized that SIU
investigations had to be carried out in a “transparent manner” and that “any
deviation from what is understood to be standard investigation practices
undermines public confidence” (p. 4). The report contained 25 recommendations
that were intended to provide the standard investigatory practices necessary to
ensure public confidence in these investigations. Chief among them was the
creation of a comprehensive regulation to govern SIU investigations.

[40]The various provisions of O. Reg. 673/98 — and
certainly the key ones — tracked Mr. Adams’ recommendations. Indeed, Mr.
Adams can fairly be described as the father of the SIU’s governing regulation.
All of the following provisions of O. Reg. 673/98 can be traced back to his
recommendations:

•section 1 of the regulation distinguished
between subject and witness officers (recommendation 9);

•section 3 required the police to immediately
notify the SIU of an incident triggering its jurisdiction (recommendation 4);

•section 4 required the police to secure the
scene of the incident until the SIU’s arrival (recommendation 6);

•section 5 provided that the SIU was to be the
lead investigator (recommendation 7);

•section 6 required witness and subject officers
to be segregated until the completion of their SIU interviews (recommendation
8);

•section 9 required officers to complete their
notes on the incident in accordance with their duty (recommendation 14);

•section 11 required chiefs of police to also
conduct an investigation into the incident (recommendation 15); and

•sections 12 and 13 regulated public statements
by the police and the SIU (recommendation 17).

[41]O. Reg. 673/98 was never amended and remained in
force until 2010. In 2010, it was revoked and O. Reg. 267/10, the regulation
at issue in this case, came into force. Little of O. Reg. 673/98, however, was
modified as a result of this change.[1]
The s. 7(1) entitlement to counsel and the s. 9 duty to make notes, which are
at the centre of this appeal, were worded identically in both regulations.

[42]Since 2010, ss. 7 and 9 of the regulation were
amended in O. Reg. 283/11, while this case was pending in the Court of Appeal,
following a brief report by the Honourable P. J. LeSage (Report
regarding SIU Issues (2011)). Mr. LeSage had been asked to “review some
issues that [had] arisen over the last few years” in SIU investigations (p.
1).

[43]In his report, Mr. LeSage recommended four
amendments to the regulation, three of which were implemented in 2011: that
officers involved in the incident be forbidden from communicating directly
or indirectly with other officers involved in the incident during SIU
investigations (p. 2; s. 6(2)); that witness officers not be represented by the
same counsel as subject officers (p. 2; s. 7(3)); and that notes be completed
by the end of an officer’s tour of duty, except where excused by the chief of
police (p. 2; s. 9(5)).[2]
Mr. LeSage’s report was silent on the issue of police officers consulting with
counsel before making their notes.

(3) Conclusion on the Purpose of the Special Investigations
Unit

[44]In establishing the SIU, the legislature
intended to create an independent and transparent investigative body for the
purpose of maintaining public confidence in the police and the justice system
as a whole. This was the rationale for the Task Force’s recommendation, and it
was explicitly adopted by the government of the day when the Actwas
enacted. The regulationwas created to facilitate this purpose. It
provided a regulatory framework designed to ensure that the SIU could conduct
its investigations in an independent and transparent fashion.

D. Interpreting the Section 7(1)
Entitlement to Counsel

[45]As indicated, this appeal turns on the proper
interpretation of s. 7(1) of the regulation, which reads in relevant part:

. . . every
police officer is entitled to consult with legal counsel or a representative of
a police association and to have legal counsel or a representative of a police
association present during his or her interview with the SIU.

[46]The Officers urge an expansive interpretation of
s. 7(1). They argue that s. 7(1) provides two distinct entitlements to
counsel. First, officers are entitled to “consult” with counsel. Second, they
are entitled to have counsel “present” during their interview with the SIU.
The right to “consult” with counsel is said to be a freestanding right that
includes the right to consult with counsel in the preparation of notes.

[47]With respect, I cannot accept this submission.
Read in its entire context, s. 7(1) does not provide a freestanding entitlement
to consult with counsel at the note-making stage. I reach this conclusion for
three reasons. First, consultation with counsel at the note-making stage is
antithetical to the dominant purpose of the legislative scheme because it risks
eroding the public confidence that the SIU process was meant to foster.
Second, the legislative history demonstrates that s. 7(1) was never intended to
create a freestanding entitlement to consult with counsel that extended to the
note-making stage. Third, consulting with counsel at the note-making stage
impinges on the ability of police officers to prepare accurate, detailed and
comprehensive notes in accordance with their duty under s. 9 of the regulation.

(1) The Purpose of the Legislative Scheme

[48]The SIU was born out of a crisis in public
confidence. Whether or not police investigations conducted into fatal police
shootings in the 1980s were actually biased, the public did not perceive them
to be impartial (see, e.g., Task Force Report). This history teaches us that
appearances matter. Indeed, it is an oft-repeated but jealously guarded
precept of our legal system that “justice should not only be done, but
should manifestly and undoubtedly be seen to be done” (R. v. Sussex Justices,
Ex parte McCarthy, [1924] 1 K.B. 256, at p. 259, per Lord Hewart
C.J.). And that is especially so in this context, where the
community’s confidence in the police hangs in the balance.

[49]The legislative scheme is designed to foster
public confidence by specifically combating the problem of appearances that
flowed from the old system of “police investigating police”. The problem under
that system, of course, was that it created the unavoidable appearance that
officers were “protecting their own” at the expense of impartial
investigations. The legislature deemed this appearance unacceptable and
created the SIU to guard against it by placing investigations of the police in
the hands of civilians.

[50]The difficulty with allowing officers to fully
consult with counsel at the note-making stage is that it creates an
“appearances problem” similar to the one that the SIU was created to overcome.
A reasonable member of the public would naturally question whether counsel’s
assistance at the note-making stage is sought by officers to help them fulfill
their duties as police officers, or if it is instead sought, in their
self-interest, to protect themselves and their colleagues from the potential
liability of an adverse SIU investigation. Given that solicitor-client
privilege attaches to these discussions, the public’s unease is unanswerable.

[51]In this regard, the facts of the Schaeffer
investigation are especially troubling. Both officers completed their notes
only after their lawyer had reviewed their draft notes. Neither officer ever
provided their original draft notes, which, of course, were shielded behind
solicitor-client privilege, to the SIU. The public has no way of knowing what
counsel’s role was. The SIU Director, however, concluded that he had no
information from which he could base his conclusion as to what happened in the
death of Mr. Schaeffer as a result of counsel’s involvement. Surely this is
not the stuff out of which public confidence is built.

[52]It seems fitting to recall here that Sir Robert
Peel, the father of modern policing, is credited with having said that “the
police are the public and . . . the public are the police” (C. Reith, The
Blind Eye of History: a study of the origins of the present Police era (1975),
at p. 163). The wisdom of this statement lies in its recognition that public
trust in the police is, and always must be, of paramount concern. This concern
requires that officers prepare their notes without the assistance of counsel.
Consultations with counsel during the note-making stage are antithetical to the
very purpose of the legislative scheme — and for that reason, they must be
rejected.

(2) The Intended Scope of the Section 7(1) Entitlement to
Counsel

[53]My conclusion that s. 7(1) has no application at
the note-making stage is supported by the regulation’s legislative history.
When this history is considered, it is apparent that the provision was never
meant to provide an entitlement to counsel at the note-making stage.

[54]Section 7(1) of the regulationflows from
Mr. Adam’s 1998 report. As such, the report provides cogent evidence of the
intended scope of the s. 7(1) entitlement to consult counsel — an observation
with which the Officers agree. Indeed, in oral argument, they stressed the
fact that Mr. Adams had engaged in “literally . . . hundreds of consultations”
with interested parties, including “virtually every police force”, and that the
Attorney General, after reviewing the report, had “created the legislation
based upon the framework suggested [by Mr. Adams] as a result of that
consensus” (transcript, at pp. 6-7). Recommendation 11 of the Adams 1998
report dealt with the entitlement to counsel and read as follows:

The regulation should stipulate that an
officer is entitled to representation by legal counsel and/or a police
association, provided the availability of such advisors will not lead to an
unwarranted delay. [p. 91]

[55]The discussion surrounding this recommendation
centred on an officer’s entitlement to have counsel at the SIU interview. As
the report notes:

There was . . . broad agreement that an
officer was entitled to legal and police association representation at SIU
interviews, provided such representation did not result in unwarranted delay.
[p. 90]

In contrast, there is no
discussion of a role for counsel at the note-making stage, let alone a
recommendation that officers should be entitled to consult with counsel when
making their notes.

[56]In 2003, Mr. Adams released a second report,
after having been appointed by the Attorney General to evaluate the
implementation of his 1998 recommendations (Review Report on the Special
Investigations Unit Reforms (2003) (“Adams 2003”)). Mr. Adams commented
specifically on the implementation of the recommendation that officers be
entitled to representation by counsel:

This recommendation has been
implemented in s. 7 of the Regulation. Every
police officer is entitled to have legal counsel or an association
representative present during his or her interview. The SIU Director has the
power to waive this right, if waiting for representation would cause an
unreasonable delay. [Emphasis added; p. 51.]

[57]Again, no role for counsel at the note-making
stage was mentioned. Indeed, later in the report, Mr. Adams observed that some
officers had been receiving legal advice “to refrain from completing their
notes until they [had] consulted with their lawyers”. He described this
practice as “very problematic” (p. 55).

[58]The interpretation of s. 7(1) proposed by the
Officers fails to take account of this legislative history. As they themselves
note, Mr. Adams’ 1998 report resulted from a comprehensive process of
consultation and analysis. Indeed, it is not an overstatement to say that his
25 recommendations became the regulation. Yet, in neither his 1998
report nor his 2003 report does Mr. Adams make mention of an entitlement to
counsel at the note-making stage. I would have thought that if s. 7(1) was
intended to permit such a contentious practice, it would have generated
considerable discussion in Mr. Adams’ comprehensive reports. The fact that no
mention is made of it supports my opinion that s. 7(1) was never meant to
provide an entitlement to counsel at the note-making stage.

[59]In so concluding, I have not ignored the
Officers’ argument regarding governmental inaction. In particular, they point
out that, in the context of SIU investigations, the government has long been
aware of the practice of officers consulting with counsel prior to preparing
their notes. Mr. Adams observed the problem in his 2003 report, and Mr. LeSage
certainly would have been aware of it when he made his recommendations in 2011,
after this case had been decided by the Superior Court. Yet the government did
nothing to curtail the practice, despite making other changes to the regulatory
framework in 2010 and 2011. The Officers argue that it can be inferred from
this that the government intended and still intends to permit this practice
under the regulation (A.F., at para. 64).

[60]With respect, I do not agree. In this case,
governmental inaction provides no meaningful insight into the intended scope of
the s. 7(1) entitlement to counsel. It is only if we start from the position
that s. 7(1) allows consultation with counsel at the note-making stage that we
can infer from governmental inaction that the government intended — and is
content with — the current practice. If, however, we assume that s. 7(1) does
not and never did permit consultation with counsel at the note-making stage,
one can just as readily infer that the government has taken no action because
none was needed. The government is not required to amend regulations to forbid
practices that are already inconsistent with the legislative scheme. Viewed in
this way, the Officers’ argument does not tip the scale one way or another.

(3) Avoiding a Conflict With The Duty to Make Notes

[61]My conclusion that s. 7(1) was never meant to
provide an entitlement to consult with counsel at the note-making stage is
reinforced when the duty to make notes, as recognized in s. 9, is considered.
Consultation with counsel during the note-making process impinges on the
ability of police officers to comply with that duty.

(a) The Duty to Make Notes Generally

[62]Sections 9(1) and 9(3) of the regulationrequire
witness and subject officers to “complete in full the notes on the incident in accordance
with [their] duty”. The regulationdoes not define the duty to make
notes. Nor does the Act, which provides a non-exhaustive list of the “duties
of a police officer” in s. 42, including, for example, preserving the peace,
laying charges and participating in prosecutions, and performing the lawful
duties that the chief of police assigns.

[63]Although it is common ground among the parties
that the duties of a police officer include a duty to make notes on the events
that transpire during the officer’s tour of duty, I recognize that neither side
points to a definitive statement of this Court holding as much.[3]

[64]However, reports by experienced jurists have
concluded that such a duty exists. For example, in their 1993 report to the
Attorney General of Ontario on charge screening, disclosure, and resolution
discussions, a committee made up of experienced counsel and police officers and
led by the Honourable G. A. Martin, observed that:

. . . the duty to make
careful notes pertaining to an investigation is an important part of the
investigator’s broader duty to ensure that those who commit crimes are held
accountable for them.

. . .

. . . inadequate note-taking,
while it can hamper the conduct of the defence, also risks hampering an
investigation and/or a prosecution. In short, inadequate note-taking does a
disservice to both an accused and the community, [which] is entitled to expect
that innocent people will be acquitted and guilty people properly convicted.
[Emphasis added.]

[65]In another instance, the Honourable R. E.
Salhany considered the significance of police notes in the course of a public
inquiry into a death caused by an off-duty officer. He explained the
importance of notes in this way:

[Note-making] is not a burdensome task
that police officers must reluctantly undertake because they were taught to do
so at their police college. It is an integral part of a successful
investigation and prosecution of an accused. It is as important as obtaining an
incriminating statement, discovering incriminating exhibits or locating helpful
witnesses. The preparation of accurate, detailed and comprehensive notes as
soon as possible after an event has been investigated is the duty and
responsibility of a competent investigator. [Emphasis added.]

(Report of the Taman
Inquiry (2008), at p. 133)

[66]These conclusions, in my view, stand on firm
ground. The importance of police notes to the criminal justice system is
obvious. As Mr. Martin observed of properly-made notes:

The notes of
an investigator are often the most immediate source of the evidence relevant to
the commission of a crime. The notes may be closest to what the witness
actually saw or experienced. As the earliest record created, they may be the
most accurate. [p. 152]

[67]Against that background, I have little
difficulty concluding that police officers do have a duty to prepare accurate,
detailed, and comprehensive notes as soon as practicable after an
investigation. Drawing on the remarks of Mr. Martin, such a duty to prepare
notes is, at a minimum, implicit in an officer’s duty to assist in the laying
of charges and in prosecutions — a duty that is explicitly recognized in s.
42(1)(e) of the Act.

[68]None of this, of course, comes as news to police
officers. In this case, for example, OPP policy confirms the duty to make
notes by requiring constables to record “concise, comprehensive particulars of
each occurrence” during their tour of duty and to “make all original
investigative notes . . . during an investigation or as soon thereafter
practicable” (OPP Order 2.50, Member Note Taking, SIU Record, at pp. 48-52).
More generally, police manuals have long emphasized the importance of accurate,
detailed, and comprehensive notes; see, e.g., R. E. Salhany, ThePolice
Manual of Arrest, Seizure & Interrogation (7th ed. 1997), at pp.
270-78.

(b) Consultation With Counsel and the Duty to Make Notes

[69]The parties agree on the existence of the duty
to make notes. Their dispute centers on whether consultation withcounsel
is consistent with that duty. Specifically, the issue is whether talking to a
lawyer before preparing one’s notes impinges on the ability of police officers
to prepare accurate, detailed, and comprehensive notes in accordance with their
duty under s. 9 of the regulation.

[70]The SIU Director argues that consulting with
counsel risks undermining the independence and timeliness of officer notes.
The Officers’ response is that the regulation provides a complete answer to
concerns about timeliness, and that consulting with counsel at the note-making
stage does not interfere with the independence of notes because counsel can be
trusted to act with integrity and not impinge on the note-making process.

[71]With respect, I do not find the SIU Director’s
concerns decisive. The regulationhas been amended to ensure that notes
are completed in a timely fashion (see s. 9(5)). And as far as independence is
concerned, although I acknowledge the possibility of some risk, I am not
prepared to find that consultation with counsel would, in fact, undermine the independence
of a witness or subject officer’s account. Such a conclusion is inconsistent
with the position of trust counsel rightly enjoy in our justice system.

[72]But that does not end the matter. In my view,
the expansive right of consultation urged by the Officers remains problematic.
To be precise, it creates a real risk that the focus of an officer’s
notes will shift away from his or her public duty under s. 9, i.e.
making accurate, detailed, and comprehensive notes, and move toward his or her private
interest,i.e. justifying what has taken place — the net effect
being a failure to comply with the requirements of the s. 9 duty.

[73]The Officers, it must be recalled, contend that
s. 7(1) creates a broad right to counsel. They argue that it provides “full
consultation with counsel before notes are completed and the interview
process is even engaged” (A.F., at para. 56 (emphasis added)). They further
contend that the advice provided during the “full consultation” would cause the
officer to “fully appreciate the importance of providing a comprehensive
account which addresse[s] all factual and legal issues that would be of
interest to the SIU, to the officer’s police service and to the public” (A.F.,
at para. 65 (emphasis added)) and lead to “enhanced” notes (transcript, at pp.
26-27 and 54).

[74]Manifestly, the “full consultation” envisioned
by the Officers — geared towards creating a “comprehensive account” that
addresses all of the “legal issues” of interest to the SIU — means that
the private interestsof the officer will be discussed. That is, the
conversation will address the potential liability facing the officer and his
colleagues and the possible justifications for what has occurred. The sort of
advice one might expect to hear during this wide-ranging conversation is
illustrated by an article in a police association newsletter written to police
officers by a lawyer with significant experience in such cases:

Responding
to SIU calls is not so much about what happened, but why it happened. It matters less that the suspect was punched, kicked or even shot
than it does why. Note-making and report-drafting in the face of an SIU
investigation are mostly about setting forth the reasons why you responded as
you did.

The obvious needs to be said and said again: “He pointed the firearm at me and, fearing for my life and the
life and safety of my fellow officers and members of the public, I fired at him
several times.”

You
will note that I said several times. Most people who discharge their firearm at
an armed suspect are unsure how many times they fired, and equally unsure
whether or not to admit it. In a world of admit and explain, it is crucial
that you allow yourself some margin of error in your account so that later the
SIU does not begin to doubt your credibility/reliability. [Emphasis
added.]

(G. Clewley, “Officers
and the SIU” (2009), 4 The Back-Up 25)

[75]To be clear, there is nothing sinister about
such discussions. Advising clients of their public duties and their private
interests is the responsibility of competent counsel. As Sharpe J.A.
observed, correctly in my view, “[a] lawyer would only be doing his or her job
in providing the police officer with information as to the ingredients of an
offence or possible legal defence” (para. 73).

[76]But therein lies the risk to the fulfilment of
the officer’s duty. The purpose of notes is not to explain or justify the
facts, but simply to set them out. Indeed, until human ingenuity
develops a technology that can record sights, sounds, smells, and touch, an
officer’s notes are effectively the next best thing. In this regard, I note
that the OPP Basic Constable Workbook instructs officers that:

Your notes are made from independent
recollection and are your link to the past. They are there to assist you to
gather the facts and details and to properly record events, observations and
performances experienced during general duty functions and investigations. . .
. [I]t is your responsibility to maintain an up-to-date record of what you
have done, seen, heard, smelled, or touched during your tour of duty.

[77]Without imputing any ill will on the part of
officers who seek legal advice or the lawyers who provide it, it would only be
natural for officers to listen to the good advice of counsel, and it would not
be surprising for the notes they prepare after this consultation to
reflect that advice. But this creates a real risk that the focus of an
officer’s notes will shift — perhaps overtly, perhaps more subtly — away from
the rather mechanical recitation of what occurred (which is required by
their duty) toward a more sophisticated explanation for why the incident
occurred (which detracts from that duty).

[78]This risk is not merely theoretical. The notes
of Acting Sgt. Pullbrook serve as an example of this subtle shift toward justifying
conduct. The record contains his notes from the day of the shooting
(prepared with the assistance of counsel; A.R., vol. III, at pp. 537-64) and
his notes from the two previous days (prepared without assistance; A.R. vol.
III, at pp. 532-37). The notes made before the day of the shooting recite what
the officer saw and did, and make repeated references to the time at which the
events occurred. In other words, they reflect in form and substance the type
of notes that police officers are taught to make from their very first days of
basic-training.[4]

[79]By contrast, the notes from the day of the
shooting contain no time references between 8 a.m. and 2 p.m. — spanning the
time between when Acting Sgt. Pullbrook began his shift and when paramedics
arrived on the peninsula after the shooting. The notes also display a
particular concern with justifying why the officers first took physical control
of Mr. Schaeffer — before he became resistant and brandished a knife — and
invoke legal terminology to that end.

[80]In short, Acting Sgt. Pullbrook’s notes read
like a prepared statement designed, at least in part, to justify his and his
partner’s conduct, unlike a set of police notes that simply record the events
in a straightforward fashion. And while I would not suggest there is anything
inaccurate or dishonest in the notes as a result of counsel’s participation, an
officer’s notes are not meant to provide a “lawyer-enhanced” justification for
what has occurred. They are simply meant to record an event, so that others —
like the SIU Director — can rely on them to determine what happened. In
this case, that is what the SIU Director was unable to do.

(4) Conclusion on the Interpretation of Section 7(1)

[81]As I noted at the outset, the ambit of s. 7(1)
must be interpreted harmoniously with the regulatory scheme. Here, we are
asked to pick between two possible interpretations of s. 7(1) of the regulation— one that reads the provision as allowing consultation with counsel at the
note-making stage, and one that does not. As I have just explained,
interpreting s. 7(1) as allowing this consultation is inconsistent with the
purpose of the legislative scheme, runs contrary to the legislative intent
behind the provision, and creates a real risk that officers will fail to meet
their obligation under s. 9 of the regulationto make notes in
accordance with their duty. Reading s. 7(1) as providing a more limited
entitlement to counsel that does not apply at the note-making stage, however,
avoids all three of these difficulties. Under this interpretation, the
provision is in harmony with the purpose of the legislative scheme, the intent
behind the provision, and the s. 9 duty to make notes. This is precisely what
the modern approach to statutory interpretation demands. As a result, this interpretation
must be accepted.

E. The Cross-Appeal

[82]The Court of Appeal concluded that, while s.
7(1) of the regulationdoes not entitle officers to the assistance of
counsel in the preparation of their notes, it does entitle them to “basic legal
advice” about the nature of their rights and obligations under the Act and the
regulation before they complete their notes. That basic advice could include
informing officers that they are required to complete their notes prior to the
end of their tour of duty unless excused by the chief of police, and that their
notes will be submitted to the chief of police (para. 81).

[83]With respect, I disagree with this aspect of the
Court of Appeal’s reasons. In my view, the legislative history shows that s.
7(1) was not meant to create an entitlement to counsel before an officer has
completed his or her notes. Without in any way impugning the integrity of
counsel or police officers, even the perfunctory consultation contemplated by
the Court of Appeal is liable to cause an “appearances problem” similar to the
one I have already identified. Because the initial consultation is privileged,
the public will have no way of knowing what was discussed. As a result, the
same threat to public confidence exists, even if on a somewhat diminished
scale.

[84]A loss of public trust would seem a high price
to pay for an initial consultation that, in my view, achieves no tangible
benefit. Counsel cannot discuss the facts surrounding the incident in any
meaningful sense, if at all; nor can there be any discussion about the legal
issues that flow from the facts. Under the Court of Appeal’s model, counsel is
limited to providing officers with basic information about their rights and
obligations under the legislative scheme. This information can easily be
conveyed in ways that do not generate any appearance problem. It can and
should be included as part of every officer’s training. If there is some need
to refresh officers as to their responsibilities after an event triggering an
SIU investigation, this refresher can be provided by a ranking officer or a
generic card kept in an officer’s notebook.

[85]In the end, the basic legal advice contemplated
by the Court of Appeal is essentially meaningless — and anything that might be
meaningful sends counsel into a minefield. In this regard, I agree with the
Officers that the court’s proposal is unhelpful:

The officer is unable to ascertain what
questions can properly be addressed to counsel and counsel is required to
navigate through an obstacle course and provide little, if any, practical
assistance to his client. The permissible advice is, in effect, no advice at
all. The Court of Appeal for Ontario has relegated the role of counsel to
a recitation of the most basic legislative requirements rather than providing
meaningful legal assistance. [Emphasis added; A.F., at para. 72.]

[86]In reaching the conclusion that officers are not
permitted to consult with counsel before they have completed their notes, I
acknowledge the fact that officers who have been involved in a traumatic
incident may well feel the need to speak to someonebefore they complete
their notes. While the regulationprevents such officers from
consulting with counsel, it does not prevent them from speaking to doctors,
mental health professionals, or uninvolved senior police officers before they
write their notes. Moreover, the regulationempowers the chief of
police to allow such officers more time to complete their notes (see s. 9(5)).

[87]I should also be clear about the scope of my
conclusion. Once officers have completed their notes and filed them with the
chief of police, they are free to consult with counsel. This would include
consultation both before and after the interview with the SIU. Consulting with
counsel at that stage is consistent with the plain wording of s. 7(1) of the
regulation and does not derogate from an officer’s duty or from the purpose of
the legislative scheme.

VII. Disposition

[88]For these reasons, I agree with the Court of
Appeal that police officers, under the Actand the regulation, are not
permitted to have the assistance of counsel in the preparation of their notes.[5] However, in my
respectful view, the Court of Appeal erred in finding that police officers are
entitled to receive basic legal advice as to the nature of their rights and
duties prior to completing their notes.

[89]I would therefore dismiss the appeal and allow
the cross-appeal and grant a declaration pursuant to Rule 14.05(3) of the Rules of Civil
Procedure in the following terms:

The Police Services Act, R.S.O. 1990, c. P.15, s. 113(9), and
the regulation regarding Conduct and Duties of Police Officers Respecting
Investigations by the Special Investigations Unit, O. Reg. 267/10, prohibit
subject and witness officers from consulting with counsel until the officers
have completed their police notes and filed them with the chief of police.

[90]The motion to strike brought by the SIU Director
is granted. I would award costs to the Families on the appeal and
cross-appeal, but would make no other order as to costs.

The reasons of
LeBel, Fish and Cromwell JJ. were delivered by

[91]LeBel and
Cromwell JJ. (dissenting) —We have had the benefit of
reading Justice Moldaver’s reasons. We do not agree that the wording of the
legislation alone fully resolves the issues in this case. However, we agree
with our colleague that it is inconsistent with a police officer’s duty to
complete his or her notes to seek legal advice which would influence the
contents of those notes. On that basis, we agree that the appeal should be
dismissed. However, we disagree with Justice Moldaver’s proposed disposition
of the cross-appeal. As we see it, it is not inconsistent with the officer’s
duty or with the legislation to have access to legal advice about the limited
matters contemplated by the Court of Appeal. We would therefore dismiss the
cross-appeal.

[92]We rely on the facts as set out by Justice
Moldaver in his reasons.

I. Section 7(1) Does Not
Restrict the Liberty to Consult with Counsel

[93]Justice Moldaver is of the view that s. 7(1) of the Conduct
and Duties of Police Officers Respecting Investigations by the Special
Investigations Unit regulation, O. Reg. 267/10, is a comprehensive code
regarding a police officer’s entitlement to counsel and that “the scope of
[the] entitlement to counsel . . . flows from a regulatory provision” (para.
29).

[94]Respectfully, we do not agree. The starting
point for the analysis and for interpreting the legislation is that a police
officer, in common with everyone else, is free to get legal advice provided
that doing so is not prohibited by law or contrary to the police officer’s
other responsibilities and duties. Viewed in this light and interpreted in its
full context, the regulation cannot be viewed as a comprehensive code and
therefore does not mandate the result proposed by Justice Moldaver. Everyone
is at liberty to consult counsel whenever they wish unless doing so is
precluded by lawful authority or inconsistent with their duty. Section 7(1) is
simply a confirmation of the entitlement to counsel of police officers at the
interview stage of a Special Investigations Unit (“SIU”) investigation.

[95]The regulationwas designed to clarify
the rights of officers, their duties, and the processes of the SIU. It is not
a comprehensive code that determines the scope of the right to counsel during
an SIU investigation or excludes any other consultation with counsel or police
association representative. When freedoms are restricted under the regulation,the restrictions are expressed clearly, either by the regulation’s express
words or by reason of inconsistency with its purpose.

[96]The enactment of the regulation was necessary in
light of uncertainty with respect to the rights and duties of police officers
and processes of the SIU following its inception in 1990 (see Consultation
Report Concerning Police Cooperation with the Special Investigations Unit (1998)
(“Adams Report 1998”), at pp. 13 and 22-24). As noted by Justice Moldaver, the
SIU operated for years in the absence of the regulation intended to guide the
conduct of police officers vis-à-vis SIU investigations. Prior to the
enactment of the regulation, however, police officers did not operate in
a lawless vacuum. Although the regulation created some legal distinctions that
did not exist beforehand, the rights and duties of police officers were merely
reiterated more precisely and clarified in the regulation. The Police
ServicesAct, R.S.O. 1990, c. P.15, (as well as the common law)
already provided for the rights and duties of police officers. This is
confirmed in the 1998 Adams Report. In this report, the Honourable George
Adams stated:

With respect to the cooperation police officers
are expected to provide to an SIU investigation, the Act says only:

113(9) Members
of police forces shall cooperate fully with the members of the unit in the
conduct of investigations.

There are no other references in the statute or
in the regulations to the conduct of SIU investigations. However, the
express duties of police officers in the Act and the regulations are cast in
sufficiently general terms so that a failure to cooperate with the SIU is a
breach of duty. Nevertheless, the generality of s. 113(9) and its potential
relationship with the Canadian Charter of Rights and Freedoms have
proven fertile ground for dispute and confusion over what precisely is expected
of police officers and chiefs of police by this subsection. [Emphasis
added; footnote omitted; p. 13.]

[97]Such a clarification of existing rights and
duties, however, cannot be an exhaustive code. The provisions of the
regulationon their own do not have the requisite comprehensiveness to
qualify as complete codes. To characterize the provisions of the regulationas a “complete code” undermines the importance of the rights, duties and
liberties of police officers and disregards the complexity of the legal
environment that grounds and defines them. For example, s. 9 of the regulation
provides for officers’ duty to complete notes, but leaves the whole content of
this duty left to be spelled out elsewhere. To view s. 9 as an exhaustive
framework of the duty to write notes would be to leave officers with
insufficient guidance. Surely this provision on its own cannot be interpreted
as a comprehensive code or a part of a complete code.

[98]Section 7(1) is similarly bare. It is
inconsistent to say on one hand that s. 7(1) of the regulationcomprehensively
sets out an officer’s entitlement to counsel, yet on the other hand leave open
the question as to whether a police officer who has completed his or her notes
is entitled to consult counsel before (or after) his or her interview and the
appropriate extent of such consultation; the reasons of our colleague do not
answer this question. Leaving such a basic question unanswered in s. 7(1)conflicts
with the very nature of a comprehensive, exhaustive framework. Such basic
questions must in fact be answered by examining the rights and duties of police
officers in light of the common law and the overarching purpose of the Act;
examining s. 7(1) on its own does not suffice.

II. The Appropriate
Interpretation of Section 7(1) of the Regulation and a Police Officer’s Freedom
to Consult Counsel

[99]Given that our approach is to emphasize a starting point of
liberty and to acknowledge that s. 7(1) of the regulation on its own is not a
comprehensive code, our interpretation of the scope of s. 7(1) differs from
that of Justice Moldaver. Under the modern approach to legal interpretation,
the words of s. 7(1) are to be read in their entire context, in their
grammatical and ordinary sense harmoniously with the scheme of the Act, the
object of the Act, and the intention of Parliament (R. Sullivan, Sullivan on
the Construction of Statutes (5th ed. 2008); Rizzo & Rizzo Shoes
Ltd. (Re), [1998] 1 S.C.R. 27, at p. 41).

[100]Section 7(1) reads as follows:

Subject to
subsection (2), every police officer is entitled to consult with legal counsel
or a representative of a police association and to have legal counsel or
a representative of a police association present during his or her interview
with the SIU.

[101]The plain wording of s. 7(1) is declaratory and affirmative in
nature rather than prohibitive. Further, the provision is conjunctive — it
grants the right to consult with legal counsel and the right to have
legal counsel present during an SIU interview. This wording does not oust the
rights that police officers would otherwise enjoy as ordinary citizens. This
wording also confirms that the regulation’s purpose is to clarify, and not to
expand or remove, rights and duties.

[102]Another principle of modern legal interpretation is that
provisions of a statute or a regulation must be read in context and in harmony
with other provisions of the statute or regulation. Thus, we acknowledge the
importance of the relationship between a police officer’s duty to write notes
about an incident and his or her entitlement to consult counsel. It is clear
that police officers have a duty to make notes in an independent, timely and
comprehensive manner. But the question is whether, under a correct
interpretation, the existence and execution of this duty necessarily excludes
any form of legal consultation prior to the drafting of the notes.

[103]The potential tension between the right to consult and the duty
of the officer to write complete and independent notes can be resolved by
simply drawing a line to determine how and when the right to consult with
counsel should not be exercised. In our view, the reasons of Sharpe J.A. in
the Court of Appeal drew the line at the right place (2011 ONCA 716, 107 O.R.
(3d) 721). We agree with him that police officers should not be allowed to
consult about the drafting of the notes themselves where such consultation
affects the independence of notes. The contents and drafting of the notes
should not be discussed with counsel. The drafting should not be directed or
reviewed by counsel. The notes must remain the result of a police officer’s
independent account of the events. However, eliminating any form of
consultation before the drafting of the notes is an entirely different matter.
Such an overly cautious approach takes no account of the basic freedoms that
police officers share with other members of society. Everyone is entitled to
seek the advice of a lawyer. This freedom also reflects the importance of the
societal role of lawyers in a country governed by the rule of law. Lawyers
represent people, communicate legal information and give advice. The execution
of these functions contributes to the maintenance of the rule of law. Indeed,
these functions are deemed so important that they are often protected by strong
privileges of confidentiality that are linked to our basic values and
constitutional rights. With this in mind, the freedom to consult with counsel
should not be eliminated merely through a narrow reading of the regulation in
the absence of clear legislative intent. This narrow interpretation also
reflects an unjustified mistrust of lawyers. It cannot be assumed that lawyers
will advise their clients to break the law and fail to discharge their duties
to the public and to justice itself.

[104]Interpreting s. 7(1) of the regulationpurposively
requires that we give effect to police officers’ freedom to consult counsel and
at the same time consider the importance of the SIU’s mandate to enhance public
confidence in the police. The content of a police officer’s notes cannot vary
in accordance with his or her personal legal interests. To that effect, legal
counsel must be cognizant of an imperative ethical boundary — they cannot place
their clients’ interests ahead of their duty to the public and the advice they
provide must be confined within this boundary. It cannot be assumed that they
will not be faithful to their ethical duties or that they will recommend that
police officers disregard their obligations. Lawyers will know that they
cannot give advice on the style or content of the notes. They will be mindful
of the proper scope of their advice.

III. The Appropriate Scope of
Legal Consultation

[105]Sharpe J.A.’s reasons properly define the appropriate scope of
legal consultation prior to the drafting of the notes of the police officer.
His approach acknowledges that police officers have a duty to write independent
and comprehensive notes in a timely manner and that brief and basic
legal consultation does not necessarily interfere with that duty.

[106]Justice Moldaver suggests:

A reasonable member of the
public would naturally question whether counsel’s assistance at the note-making
stage is sought by officers to help them fulfill their duties as police
officers, or if it is instead sought, in their self-interest, to protect
themselves and their colleagues from the potential liability of an adverse SIU
investigation. [para. 50]

[107]However, the standard for determining public confidence is a
reasonable member of the community who is properly informed about “the
philosophy of the legislative provisions, Charter values and the actual
circumstances of the case” (R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R.
309, at para. 41, quoting R. v. Nguyen (1997), 119 C.C.C. (3d) 269, at
p. 274). If this is the standard, the member of the community would know that
an officer’s notes cannot be used against him or her in the course of an
investigation by the SIU. This is because of s. 9(3) of the regulation and the
treatment the Attorney General affords to subject officers’ notes as
involuntary statements that attract both use-immunity and derivative
use-immunity. The risk of self-interest prevailing over an officer’s
public duty is therefore slightly exaggerated. The concern relating to public
confidence in the context of police completing their notes impartially relates
to an apprehension that an officer may place his or her colleague’s
interest over his or her public duty. More importantly, to be skeptical of the
propriety of legal counsel’s advice in the presence of clear guidelines
relating to the content of the advice set out for their benefit is not
reasonable. This would undermine the trust we instill in lawyers as officers
of the court.

[108]Legal consultation on the specific contents of
an officer’s notes runs the risk of compromising an officer’s independent
account of the facts. We agree with Sharpe J.A. that appropriate advice
given to a police officer is the following:

-he or she is required to complete notes of the
incident prior to the end of his or her tour of duty unless excused by the
chief of police;

-the lawyer cannot advise the officer what to
include in the notes other than that they should provide a full and honest
record of the officer’s recollection of the incident in the officer’s own
words;

-the notes are to be submitted to the chief of
police;

-if the officer is a subject officer, the chief
of police will not pass the notes on to the SIU;

-if the officer is a witness officer, the chief
of police will pass the notes on to the SIU;

-the officer will be required to answer questions
from the SIU investigators; the officer will be entitled to consult counsel prior
to the SIU interview and to have counsel present during the interview. [para.
81]

These elements outline
the steps and procedures of an SIU investigation, and there is no harm in
allowing police officers this kind of legal advice. Our colleague suggests
that this advice achieves “no tangible benefit” (para. 84). While this brief,
informative conversation might not be as meaningful as comprehensive legal
advice on the relationship between an officer’s notes and potential liability,
it might help to remind an officer of his or her duties in the circumstances
and put the officer at ease after having experienced a potentially traumatic
incident. The utility of having some information about one’s rights and
obligations under the legislative scheme is clear.

[109]Indeed, our colleague recognizes the natural
instinct officers would have to listen to the “good advice of counsel” (para.
77). We are in complete agreement. For this reason, with such limits outlined
above, there are no reasonable grounds for concern regarding an officer’s
reliance on legal counsel’s advice. Further, there are no reasonable grounds
for the public to suspect that counsel will not abide by these limits. Lawyers
have duties towards both the public and the court. One of these duties is to
encourage their clients to comply with the law. According to M. Orkin in Legal
Ethics (2nd ed. 2011), at p. 16:

It
follows that the lawyer should uphold the law; should not advise or assist the
client in violating the law; . . . and should help to improve the
administration of justice.

. . .

. .
. Not only is a lawyer required affirmatively to uphold the law, but is also
under a duty not to subvert the law.

A barrister has a duty to his client
fearlessly to raise every issue, advance every argument and ask every question,
however distasteful, which he properly may and which he thinks will help his
client’s case, without regard to any unpleasant consequences to himself or any
other person. In the interests of the administration of justice, however, a
barrister has an overriding duty to the court, to the standards of his
profession and to the public. Thus, he must not knowingly mislead the court;
this duty prevails over that he owes to his client. [Emphasis added.]

[110]If the ethical duties of lawyers are fulfilled,
which we trust them to be, there is no inconsistency with the provision of
basic legal advice and the overarching purpose of public oversight of police.
As we said above, legal advice relating to the content of the notes, however,
might run the risk of compromising the independence of an officer’s
recollection of the facts by shifting an officer’s focus from what occurred to
potential legal consequences under various scenarios. However, the reasons of
the Court of Appeal properly addressed the scope of advice to which a police
officer is entitled if he or she chooses to seek it in order to safeguard the
independence of the drafting of notes. Only liberties that are expressly displaced
or inconsistent with the purposes of the Act or a police officer’s duties
should be restricted. There is no need to completely eliminate a police
officer’s liberty to consult counsel.

[111]For these reasons, we would dismiss the appeal and the cross-appeal.

Solicitor for the
intervener Richard Rosenthal, Chief Civilian Director of the Independent
Investigations Office of British Columbia: Independent
Investigations Office of British Columbia, Surrey.

Solicitors for the
intervener the Urban Alliance on Race Relations: Stevensons,
Toronto.

Solicitor for the
interveners the Canadian Police Association and the Police Association of
Ontario: David B. Butt, Toronto.

[1]The new regulationadded two subsections to s. 1, clarified s. 8(2), expanded on the s. 12
prohibition on police disclosure of information relating to SIU investigations,
added translations to the definitions section, and added marginal notes. Aside
from these changes, the regulation’s wording was identical to O. Reg. 673/98.

[2] Mr. LeSage’s report did not provide any explanation for these
recommendations. His fourth recommendation is unrelated to the issue at hand.

[4] Apart from SIU investigations, there is no evidence in the record
to suggest that police officers seek the advice of counsel before preparing
their notes in other contexts. This is unsurprising. Officers know how to
prepare their notes in accordance with their duty.

[5] It must be noted that s. 7(1) provides an entitlement to
consult with both counsel and “police association” representatives. The
arguments before this Court centred on the entitlement to
counsel. Virtually no mention was made of the role of police association
representatives, and the order of the Court of Appeal does not address this
issue. In the absence of any record or arguments with respect to the
representatives, I would thus confine my conclusion to the entitlement to counsel.
It is clear, however, that, to the extent that the role of police association
representatives approximates that of counsel, my conclusion would apply to them
with equal force.

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